I’ve had a lot of questions from friends, colleagues, and clients in the past two months about the news-making case of an unfortunate sperm donor in Kansas. As an attorney who helps people build their families with good legal planning for assisted reproduction, cases like the one in Kansas are exactly what I want to help people avoid.
The background of the case is so similar to the way many of my lesbian couples have chosen to grow their families. Partners Jennifer Schreiner and Angela Bauer wanted to have a baby together, but chose not to use a sperm bank. Instead, they opted to find their donor, William Marotta, on Craigslist. While the story of his donation has a happy ending — a now-three year old daughter for Jennifer and Angela — the legal aftermath is anything but pleasant.
The mothers ended their relationship and Angela, the gestational mother, needed to apply for state welfare benefits. Kansas, like most states, takes a keen interest in recovering child support from parents to recoup state spending on benefits for a child. The parents in this case all believed they had made a valid written agreement before their daughter was born, stating that William would have no parental rights or responsibilities. The mothers want no child support, and are testifying in his defense.
Could what happened in Kansas happen to a family in your state? Three things to remember:
Kansas’ law may be different from the law in your state
Under Kansas law, an insemination must be performed by a medical professional who then signs an acknowledgement of the procedure that’s filed with the state to be considered an insemination that releases the donor from parental responsibilities. That portion of the law is a slightly more specific variation on the language of the laws many states have passed, but slight can make a big difference.
Under Missouri law and the laws of many other states, insemination must be done “under the supervision of a licensed physician” but there’s no indication of what procedures that entails. Many physicians with patients who want to use donor semen but are otherwise reproductively normal counsel their clients through the process of selecting a donor, determining peak ovulation, and protecting collected semen for insemination at home rather than in the doctor’s office. While a home insemination like this one clearly doesn’t fit the Kansas requirements, it might fit the looser “supervision” requirements of other states.
Where there’s ambiguity in a term in a state law, the meaning can be clarified by that state’s courts, but only if a case that challenges the meaning of the term makes it through a local court to an appeal. That’s happened in several states that have similar laws, with mixed results: some states have found that a sperm donor can be a legal father, some have found that he cannot. Some states don’t have any cases at all that clarify the law because it’s never come up — my state is one of them.
Your state may not have laws about sperm donation and parentage at all. My neighboring state of Iowa doesn’t have any, though it does have legal same-sex marriage. If your state does have laws about sperm donation, they’re going to be phrased in terms of a legally married husband and wife. Where does that leave single mothers or unmarried couples? The law is, again, unclear and varies from state to state based on whether or not cases have been appealed.
Nobody in Kansas cared anything about the baby’s biological father until her mother needed assistance
The reason there aren’t many cases about when a sperm donor is and is not considered a legal parent is that only a handful of cases asking to find paternity are filed out of the thousands of babies born with donor sperm. Out of that handful, even fewer are appealed from a lower-court decision. The only reason any state would have to intrude on the privacy of this family is to try to recover some of the tax money used to support the little girl from the parents responsible for her. Since Kansas law prevented her non-gestational mother from adopting her, the only other choice was her biological father.
Could what happened in Kansas happen in your state? Yes. Under the same circumstances as the Kansas case, a mother who knows the identity of her donor will run the risk of needing to identify him as her child’s father if — but only if — she needed to apply for state benefits on behalf of her child. It’s always possible that one of the parents will ask to determine paternity to establish child support, but the parents in the Kansas case, like most donor-families, had a clear understanding among the three of them that they would not do that. Only the intervention of the state forced the issue.
Good planning with the help of an attorney helps keep families safe
In every news report I’ve read about the Kansas case, I haven’t seen any mention of an attorney getting involved before the state did — even in drafting the written agreements between the donor and the mothers. If this family had talked to an attorney with experience in family law, they may have chosen a different path to having a baby. Even if they had not done anything differently, they at least would have known the risk to the donor.
An attorney who practices family law in your area can not only educate you about the statutes and cases that make up the law in your state, but also help you have conversations about responsibility for costs, future relationships between your child and your donor, and how to protect your child’s relationship with her non-biological or non-gestational parent. More importantly, your attorney can put those conversations into a legally-enforceable framework.
Making a precious kiddo is a hard enough process — go in armed with the right knowledge.